FILED 


APRIL 21, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, ) 

) No. 31610-6-111 

Respondent, ) 

) 

v. ) 

) I CHRISTOPHER JAMES CARLSON, ) UNPUBLISHED OPINION I 

! ) 

j Appellant. ) ! 

t 

i FEARING, J. - Christopher Carlson exploited chivalry to rape his neighbor. He i 

! 

I appeals his convictions for second degree rape, first degree burglary, and residential I

I 

burglary. Carlson contends: (1) the trial court violated his right to a speedy trial, (2) the I 

trial court erred when it refused to instruct the jury on the inferior degree offense of third 

degree rape, (3) the trial court erred when it refused to instruct the jury on the defense of I 

I voluntary intoxication, and (4) the trial court erred when it omitted the phrase "or lack of 

I evidence" from one ofthe sentences in the jury instruction for "reasonable doubt." We i 

I 
 affirm all convictions. 


I 


t 
No. 3161O-6-III 

State v. Carlson 

FACTS 

On October 6,2012, around 6:00 p.m., MJ. returned to her Moses Lake 

apartment, where she lives alone. MJ. was then a 5'2" 58-year-old woman who weighed 

125 pounds. A man, whom MJ. rarely saw, but who lived in the apartment complex, sat 

in his car in a parking lot stall next to the stall in which MJ. parked. As MJ. exited her 

car and walked toward her apartment, the man followed. 

As MJ. approached her apartment, she saw her neighbor Christopher Carlson 

round a corner. MJ. motioned for Carlson to intervene, which he did. Carlson invited 

the man to come to Carlson's apartment. MJ. entered her apartment without incident. 

Two to three hours later, two of Christopher Carlson's neighbors heard Carlson 

singing loudly. At trial, neighbor Dan Hennagir testified he heard the singing between 

8:30 and 9:00 p.m. through the walls of his apartment. Hennagir opined that Carlson 

sounded drunk. 

Q And why do you think that he was inebriated? 

A I've heard him sing. He sings normally fine. I thought it 

was-I got a chuckle out of the fact that he was a little over the top. 

Q What was different about his singing on this occasion that led 

you to believe that he what inebriated? 

A The volume, the slurring, the kind ofwhoops and hollers in 

between certain phrases. 

Report of Proceedings (RP) (Feb. 28,2013) at 121-22. Hennagir's roommate, Albert 

Wise, also heard Carlson and testified that Carlson sounded like he had been drinking. 

Later that night, MJ. heard a knock at her apartment door. Through a window, 

2 

No. 3161 0-6-III 

State v. Carlson 

MJ. recognized Christopher Carlson at the door and believed he had come to confirm her 

safety. MJ. allowed Carlson ingress to her apartment. Christopher Carlson wore a 

Seattle Seahawks cap and held a glass containing clear liquid. Carlson sat down in a 

recliner chair. He then grabbed MJ. by the wrist and pulled her onto his lap. 

A bewildered and nervous MJ. repeatedly asked Carlson what he was doing. MJ. 

also asked Carlson, "What are you drinking?" RP (Feb. 28, 2013) at 64. She futilely 

strived to escape his grip. MJ. described what happened next: 

A He was putting-he was putting his hand-I had sweats on. 

He was putting his hands down into my pants and-He had his hands in my 

pants and he had his fingers inside of me. And then-and then he was just 

sitting there. I was still on his lap and he removed his-he took his penis 

out and-and then he said "You're going to eat it." 

No. No. I said no. And I said "No, I'm not." 

I was telling him he was hurting me because he had-he was putting 

his hands inside of me. And then when I told him no, I wouldn't do that, 

then his response was-the next thing I knew I was on the floor. He took 

me down on the floor in front of the recliner. And he was inside of me. 

Took my sweats off and he was inside of me. Just he put himself in my 

vagina. 

RP (Feb. 28, 2013) at 64-65. 

Christopher Carlson pinned MJ. on the apartment floor. Under Carlson's weight, 

MJ. struggled to breathe. Carlson told MJ.: "look at me. You owe me big time," and 

"[l]ook at me and tell me that you want me to fuck you." RP (Feb. 28, 2013) at 66, 101. 

At trial, the State asked MJ. whether she resisted being pinned. MJ. responded: 

3 

No. 3161O-6-II1 

State v. Carlson 

Yes. Yes, he's bigger than me and stronger than me and there wasn't 

anything-there was nothing I could do. And he was being so aggressive 

and yelling at me and being mean and bizarre and scary that I didn't-I 

didn't want to-I didn't want to add to it. 

RP (Feb. 28, 2013) at 68. 

Christopher Carlson ordered M.J. to remove her sweater. She complied out of 

fear. Carlson demanded M.J. tum over onto her stomach and said: "I bet you want me to 

fuck you doggie style." RP (Feb. 28, 2013) at 66. As Carlson continued to rape M.J., he 

told her: "You've let me taste you now. I'm going to want you more. And this was just 

your pussy, and I'm going to want your ass." RP (Feb. 28,2013) 67. Carlson grabbed 

MJ. by the hair, and jerked her head back. 

At trial, M.J. described the physical pain Carlson inflicted: 

It was painful to me. It was painful from the very beginning when 

his fingers were inside of me very-just so hard and awfuL And then the 

whole-and then physically, yes, because he was controlling me physically. 

I couldn't breathe. He was hurting me inside. I couldn't-I just kept 

saying "You're hurting me". 

RP (Feb. 28, 2013) at 70. 

While still pinning M.J. to the floor, Carlson whispered to M.J.: "Thank-thank 

you." RP (Feb. 28, 2013) at 67. Carlson told M.J.: "Blame it on PTSD or whatever, but 

I'm not going to remember any ofthis." RP (Feb. 28,2013) at 67. Carlson promised to 

return and most likely return that night. His last words to M.J. were: "Lock your door 

and buy some pepper spray." RP (Feb. 28, 2013) at 68. 

4 

No. 31610-6-II1 

State v. Carlson 

After Carlson left the apartment, a numb MJ. curled up and remained in this 

position in the middle of the floor. MJ. felt ashamed and embarrassed. She later locked 

her door. Around 11: 15 p.m., MJ. phoned her friend Taffian Wright, who testified: 

Her voice was quivering and she's like "Oh, my God. You won't 

believe what just happened. Oh, my God. Oh, my God." And I tried to 

calm her down. And 1 said "[MJ.], just talk to me. What happened?" 

And-and she just kind of broke down and cried a little bit. And I said, 

you know, "Talk to me." And then she just said "I was just raped." She 

just blurted it out. And then she started crying hysterically. 

RP (Feb. 28,2013) at 84. MJ. told Wright that she felt dirty. She wanted to shower and 

scrub her body. Wright encouraged MJ. to go to the hospital and to call police. 

The following day, M.J. went to Columbia Basin Hospital, where Dr. Jonathan 

Crosier examined her. Dr. Crosier testified at trial that MJ. had noticeable erythema, 

redness indicative of inflammation and trauma, in her vaginal canal and a tender neck. 

M.J. reported to the attending nurse that she had been raped the previous night by a "very 

drunk and intoxicated man." RP (Feb. 28, 2013) at 143. At trial, the nurse testified that 

M.J. commented that the man "forcefully put her to the ground [and] pulled her 

ponytail." RP (Feb. 28, 2013) at 143. 

M.J. reported the sexual assault to the Moses Lake Police Department. Detective 

Juan Rodriguez interviewed M.J. and inspected her apartment. Detective Rodriguez 

found Carlson's Seahawks cap behind M.J.'s recliner. Rodriguez searched Carlson's 

apartment, where he found a nearly empty fifth of vodka in the refrigerator and a second 

5 

No. 316IO-6-III 

State v. Carlson 

Seattle Seahawks cap. 

On October 8, 2012, Detectives Juan Rodriguez and Mike Williams interviewed 

Christopher Carlson about the rape. During the recorded interview, Carlson stated that, 

after work on October 6, he arrived home, began drinking vodka about 6:00 p.m., cooked 

dinner, drank more, sang songs, and passed out about 10:00 p.m. because he was tired. 

Carlson told the detectives he imbibed almost a fifth ofvodka. He denied raping M.1. by 

stating: "I don't remember that." Ex. 1, at 11 min., 5 sec. Carlson told the detectives that 

he owned two Seattle Seahawks caps and believed he still possessed both. 

PROCEDURE 

In October 2012, the State of Washington charged Christopher Carlson with (1) 

rape in the second degree by forcible compulsion, (2) burglary in the first degree, and (3) 

residential burglary. The State also alleged that Carlson committed the burglaries with 

sexual motivation. 

On December 3,2012, the State and Christopher Carlson stipulated to the 

following schedule: a status hearing on December 18,2012; a readiness hearing on 

January 14,2013; and trial on January 16,2013. The scheduling order established the 

outside date, for purposes oftime for trial rules in CrR 3.3, as February 1,2013. At the 

December 18,2012 status hearing, defense counsel informed the court that he was almost 

ready for trial. 

6 

No. 3161O-6-II1 

State v. Carlson 

On January 3, 2013, at a confession hearing, the trial court corrected the outside 

trial date from the original scheduling order to February 15,2013. Defense counsel 

acknowledged February 15 as the correct date. Counsel informed the trial court, 

however, that Christopher Carlson would object to any trial continuances and was ready 

to begin trial on January 16. 

At the January 14,2013 readiness hearing, the State moved to postpone the triaL 

The State asserted that its cochair deputy prosecutor could not attend on January 16 due 

to a broken elbow and Dr. Jonathan Crosier was unavailable to testifY then because of 

scheduled work in the hospital emergency room. Also, while MJ. was available January 

16, she planned a foreign trip for two weeks thereafter. MJ. had already postponed the 

extraterritorial travel to be available January 16. During the January 14 hearing, 

Christopher Carlson objected to a trial continuance. 

On January 14, the trial court denied the State's motion to postpone the January 16 

triaL The court told the parties that it would address MJ.'s travel plans if and when the 

conflict in dates actually arose. During the January 14 hearing, the trial court noted that 

Grant County has two courtrooms for jury trials and three superior court judges, and four 

criminal cases held priority over the Carlson prosecution for the trial calendar. The trial 

court kept February 15 as the outside trial date for purposes ofCrR 3.3, while 

recognizing the January 16 trial date might be continued to the following week. Trial did 

not proceed on January 16 or the following week, presumably due to other criminal trials. 

7 

No. 3161O-6-III 

State v. Carlson 

The State of Washington and Christopher Carlson appeared in court on January 

22,2013. MJ. had then already journeyed to Europe, where she planned to spend two 

weeks on both business and vacation. Based on MJ.'s unavailability, the State moved to 

continue the trial to February 6, 2013. Carlson objected. The trial court asked Carlson's 

counsel how the delay would prejudice his client, to which defense counsel responded: 

"the only way that his ability to present a defense is prejudiced is that I have other trials 

coming up that I need to prepare for as well." RP (Jan. 22, 2013) at 64. The trial court 

granted the trial continuance, under CrR 3.3(1)(2). The court found: "the defendant will 

not be prejudiced in the presentation of a defense, even if counsel will be required to 

juggle those times when he has available to prepare for other matters." RP (Jan. 22, 

2013) at 65. The trial court continued the trial date to February 6,2013, with the deadline 

for trial being March 8. Carlson filed a written objection to the continuance. 

Because of other criminal cases with trial priority, the trial court postponed 

Christopher Carlson's trial on February 4, 11, and 19,2013. On February 25, 2013, the 

State moved to continue the trial one week, which motion the trial court denied. Trial 

began on February 27, 2013, within the second outside date of March 8. 

In opening statements, the State of Washington argued: 

Ladies and Gentlemen, today we're here for one reason and it is 

because the Defendant raped a 58-year-old grandmother in her apartment. 

That is it. He doesn't recall this event. He was highly intoxicated. He 

went there with one purpose in mind. He got what he was going for. It was 

wrong. We ask you to find him guilty when we complete this case. 

8 

No. 31610-6-111 

State v. Carlson 

RP (Feb. 28, 2013) at 24. 

Christopher Carlson chose not to testify at triaL Carlson called one witness in his 

defense, Corrections Sergeant Phillip Coats, who booked Carlson into jail upon his arrest. 

Coats testified: 

Q When you did this with Mr. Carlson did he request that you 

check for scratches or marks? 

A Yes, he did. 

Q And did you do that? 

A Yes. 

Q What was-what were your findings? 

A I did not find any markings at all on him. 

RP (March 5, 2013) at 66. 

At the conclusion of trial, Christopher Carlson requested the trial court deliver a 

jury instruction on the offense of third degree rape, a crime inferior to the charged second 

degree rape. Defense counsel argued: 

[M.J.] herself stated to the nurse that she let him have her way with 

him [sic], which would support an inference that it wasn't done through 

force. Her statement about taking off her top and changing her position 

when asked to do so also support[ s] that. Her inability to describe how he 

managed to force her legs apart also-just that lack of evidence would 

support an inference that it wasn't by forcible compulsion. 

RP (March 5, 2013) at 78. The trial court refused to give the instruction on the ground 

that the jury could decide there was no forcible compulsion, but no affirmative evidence 

supported a finding that the penetration was nonconsensual, but not forcible. In other 

words, either Christopher Carlson forcibly raped MJ., or he did not rape her. Nobody 

9 

No. 31610-6-II1 

State v. Carlson 

testified that M.J. did not consent to sex and that Christopher Carlson did not force 

himself on her. 

Christopher Carlson also entreated the trial court to instruct the jury on the defense 

of voluntary intoxication. Carlson proposed this instruction: 

No act committed by a person while in a state ofvoluntary 

intoxication is less criminal by reason of that condition. However, 

evidence of intoxication may be considered in determining whether the 

defendant acted intentionally or knowingly. 

Clerk's Papers (CP) at 205. The trial court also refused to provide this jury instruction. 

The trial court recognized that Carlson presented evidence of intoxication, but found that 

Carlson presented no evidence as to how the intoxication prevented him from forming an 

intent to commit the crime. 

The trial court's jury instruction 3 instructed the jury regarding the charges against 

Christopher Carlson and the burden ofproof. The instruction included a slight deviation 

from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal § 4.01, 

(3d ed. 2008) (WPIC) specifically in instruction 3's second sentence ofthe paragraph on 

reasonable doubt: 

A reasonable doubt is one for which a reason exists and may arise 

from the evidence or lack of evidence. It is such a doubt as would exist in 

the mind of a reasonable person after fully, fairly, and carefully considering 

all of the evidence. [If, from such a consideration, you have an abiding 

belief in the truth of a charge, you are satisfied beyond a reasonable doubt.] 

CP at 244. Washington's pattemjury instruction for "reasonable doubt" provides: 

10 

No. 316] 0-6-111 

State v. Carlson 

A reasonable doubt is one for which a reason exists and may arise 

from the evidence or lack of evidence. It is such a doubt as would exist in 

the mind of a reasonable person after fully, fairly, and carefully considering 

all of the evidence or lack ofevidence. If, from such a consideration, you 

have an abiding belief in the truth of a charge, you are satisfied beyond a 

reasonable doubt as to that charge. 

WPIC § 4.01, at 85 (emphasis added). The trial court omitted the phrase "or lack of 

evidence" from the second sentence of the standard instruction. Carlson did not object to 

this instruction at trial. 

The jury found Christopher Carlson guilty of second degree rape, first degree 

burglary, and residential burglary. The jury found by special verdict that Carlson 

committed both burglary charges with a sexual motivation. The trial court sentenced 

Carlson to ] 15 months for second degree rape and 50 months for first degree burglary. 

The court dismissed the residential burglary conviction as merged with first degree 

burglary. 

LA W AND ANALYSIS 


Assignment ofError 1: Speedy Trial 


Christopher Carlson contends the trial court violated his right to a speedy trial. He 

relies on federal and state constitutional provisions, rather than timely trial rights under 

court rule, CrR 3.3. We review this contention de novo. State v. Iniguez, 167 Wn.2d 

273,280-81,217 P.3d 768 (2009). We reject the assignment. 

11 

No.3l6l0-6-III 

State v. Carlson 

The Evergreen State constitution guarantees an accused the right to a "speedy 

trial." CONST. art. I, § 22. The federal constitution likewise secures this right. U.S. 

CONST. amend. VI. In Iniguez, our Supreme Court held the Washington Constitution 

does not afford a defendant greater speedy trial rights than the United States Constitution. 

Iniguez, 167 Wn.2d at 290. 

The leading United States Supreme Court decision, Barker v. Wingo, 407 U.S. 

514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), announced a loose test for reviewing a 

claim of an unconstitutionally delayed trial: 

A balancing test necessarily compels courts to approach speedy trial 

cases on an ad hoc basis. We can do little more than identify some of the 

factors which courts should assess in determining whether a particular 

defendant has been deprived of his right. Though some might express them 

in different ways, we identify four such factors: Length ofdelay, the reason 

for the delay, the defendant's assertion ofhis right, and prejudice to the 

defendant. 

Barker, 407 U.S. at 530 (emphasis added). Until the accused shows some presumptively 

prejudicial delay, the court need not inquire into the other factors that enter the balance. 

Barker, 407 U.S. at 530. Thus, a reviewing court should first determine whether the 

claimed delay was presumptively prejudicial. Iniguez, 167 Wn.2d at 283. 

Whether a delay is presumptively prejudicial is necessarily a fact-specific inquiry 

dependent on the circumstances of each case. Iniguez, 167 Wn.2d at 291. The defendant 

bears the burden of showing that the length of the delay crossed a line from ordinary to 

presumptively prejudicial. Iniguez, 167 Wn.2d at 283. 

12 

No. 31610~6~III 

State v. Carlson 

In order to trigger the speedy-trial analysis, "an accused must allege 

that the interval between accusation and trial has crossed the threshold 

dividing ordinary from 'presumptively prejudicial' delay" because, "by 

definition," the accused "cannot complain that the government has denied 

him a 'speedy' trial ifit has, in fact, prosecuted his case with customary 

promptness. " 

State v. Ollivier, 178 Wn.2d 813,827,312 P.3d 1 (2013) (quoting Doggett v. United 

States, 505 U.S. 647, 651-52,112 S. Ct. 2686,120 L. Ed. 2d 520 (1992)), cert. denied, 

135 S. Ct. 72 (2014). 

Christopher Carlson fails to meet his initial burden ofshowing any delay was 

presumptively prejudicial. The State charged Carlson on October 9,2012, and his case 

went to trial on February 27, 2013, a continuum of four and a half months. Carlson was 

not ready for trial until the January 14, 2013 readiness hearing. The remaining six weeks 

of delay resulted from witness unavailability and other criminal cases holding scheduling 

priority, both routine impediments. From our experience, we recognize a four and onehalf months passage from the filing of charges to trial is unusually quick for a case with 

such serious charges. 

Christopher Carlson relies predominantly on our opinion in State v. Iniguez, 143 

Wn. App. 845, 180 P.3d 855 (2008), rev'd, 167 Wn.2d 273,217 P.3d 768 (2009). Such 

reliance is misplaced since our state Supreme Court overruled this court in Iniguez. We 

primarily rely on the principles announced in the Supreme Court Iniguez decision to 

affirm. 

13 
No. 31610-6-II1 

State v. Carlson 

Assignment ofError 2: Inferior Charge ofThird Degree Rape 

Christopher Carlson next complains about the trial court's refusal to permit, by 

jury instruction, the jury to convict on the inferior charge ofthird degree rape. 

Washington's criminal code differentiates between inferior degrees and superior degrees 

of the same crime depending on the seriousness of the circumstances accompanying the 

CrIme. Under RCW 10.61.003: 

Upon an indictment or information for an offense consisting of 

different degrees, the jury may find the defendant not guilty of the degree 

charged in the indictment or information, and guilty of any degree inferior 

thereto, or of an attempt to commit the offense. 

A trial court should instruct the jury on an inferior degree offense when: 

(1) the statutes for both the charged offense and the proposed 

inferior degree offense "proscribe but one offense"; (2) the information 

charges an offense that is divided into degrees, and the proposed offense is 

an inferior degree of the charged offense; and (3) there is evidence that the 

defendant committed only the inferior offense. 

State v. Fernandez-Medina, 141 Wn.2d 448,454,6 P.3d 1150 (2000) (quoting State v. 

Peterson, 133 Wn.2d at 891, 948 P.2d 381 (1997)). A trial court's decision about 

whether to instruct on a lesser-degree offense involves the application of law to facts, 

which we review de novo. State v. Corey, 181 Wn. App. 272, 276, 325 P.3d 250, review 

denied, 181 Wn.2d 1008 (2014). 

The propriety of an inferior crime instruction follows a number of familiar rules. 

A trial court may not submit a theory to the jury for which there is insufficient evidence. 

14 

No. 3161O-6-III 

State v. Carlson 

State v. Wright, 152 Wn. App. 64, 70, 214 P.3d 968 (2009). We review the evidence in 

the light most favorable to the instruction's proponent. State v. Fernandez-Medina, 141 

Wn.2d at 455-56. For the trial court to instruct on an inferior degree offense, the 

evidence must support an inference that only the lesser crime was committed. State v. 

Wright, 152 Wn. App. at 71. In other words, the evidence must permit a rational juror to 

find the defendant guilty of the lesser offense and acquit him or her of the greater crime. 

State v. Fernandez-Medina, 141 Wn.2d at 456. 

In the context of instructing the jury on an inferior charge, unique rules are added 

to familiar principles. The defendant is not entitled to the instruction on the ground that 

the jury may disbelief the testimony ofthe victim or both the victim and the defendant. 

State v. Charles, 126 Wn.2d 353,355,894 P.2d 558 (1995); State v. Jeremia, 78 Wn. 

App. 746, 755, 899 P.2d 16 (1995). The jury is not allowed to view the evidence 

between the extremes ofthe defendant's and the victim's testimony. The defendant is not 

entitled to the instruction based on the juror's potential disbelief that the defendant 

committed the greater degree offense. Instead, the evidence must affirmatively establish 

that the defendant committed the inferior offense. State v. Fernandez-Medina, 141 

Wn.2d at 456; State v. Charles, 126 Wn.2d at 355; State v. Corey, 181 Wn. App. at 276. 

Affirmative evidence is critical. 

Having reviewed general principles of charging the jury on an inferior crime, we 

now focus on the crime charged Christopher Carlson, second degree rape, and its inferior 

15 

No. 31610-6-111 

State v. Carlson 

crime, third degree rape. Chapter 9A.44 RCW addresses sex crimes, including rape. 

RCW 9A.44.050 delimits rape in the second degree, in relevant part, as: 

1) A person is guilty of rape in the second degree when, under 

circumstances not constituting rape in the first degree, the person engages 

in sexual intercourse with another person: 

(a) By forcible compulsion. 

In tum, RCW 9A.44.060 defines rape in the third degree, in pertinent part, as 

(1) A person is guilty of rape in the third degree when, under 

circumstances not constituting rape in the first or second degrees, such 

person engages in sexual intercourse with another person: 

(a) Where the victim did not consent as defined in RCW 

9A.44.0 10(7), to sexual intercourse with the perpetrator and such lack of 

consent was clearly expressed by the victim's words or conduct. 

RCW 9A.44.01O defines words employed throughout chapter 9A.44 RCW. 

(6) "Forcible compulsion" means physical force which overcomes 

resistance.... 

(7) "Consent" means that at the time of the act of sexual intercourse 

or sexual contact there are actual words or conduct indicating freely given 

agreement to have sexual intercourse or sexual contact. 

To prove second degree rape, the State must present evidence that the defendant 

had sexual intercourse with the victim by forcible compulsion. State v. Wright, 152 Wn. 

App. at 71 (2009). Forcible compulsion means that the force exerted was directed at 

overcoming the victim's resistance and was more than that normally required to achieve 

penetration. State v. Wright, 152 Wn. App. at 71; State v. McKnight, 54 Wn. App. 521, 

528,774 P.2d 532 (1989). In comparison, third degree rape requires the State to prove 

the defendant had sexual intercourse with a person who was not the defendant's spouse, 

16 

No. 3161O-6-III 

State v. Carlson 

who did not consent to the act, and who clearly expressed lack of consent by words or 

conduct. State v. Wright, 152 Wn. App. at 71. Third degree rape does not require 

forcible compulsion. Wright, 152 Wn. App. at 71. It specifically requires circumstances 

not constituting rape in the second degree. Wright, 152 Wn. App. at 71. 

The State of Washington concedes that second degree rape and third degree rape 

proscribe the same offense, and the information in this case charges Carlson with a crime 

divisible into degrees. Third degree rape is not a lesser included offense of second degree 

rape, but is an inferior degree offense. State v. Jeremia, 78 Wn. App. at 753-54. We 

must resolve whether evidence supported instructing the jury on third degree rape. Stated 

differently, we ask whether the jury heard evidence that MJ. did not consent to the digital 

or penile penetration without any forcible compulsion from Christopher Carlson. Since 

the jury heard no such evidence, we affirm the denial of the jury instruction. Under 

MJ.'s testimony, Christopher Carlson forced her into submitting to intercourse. Under 

Carlson's theory, the two engaged in a consensual association. No one testified that the 

sex was nonconsensual and unforced. 

The controlling decision is State v. Charles, 126 Wn.2d 353,894 P.2d 558 (1995). 

The Supreme Court affirmed the trial court's refusal to give the defendant's proposed 

jury instruction on third degree rape. The victim testified that Louis Charles pushed her 

onto her back on the ground behind a bush, before raping her. Charles argued the sex 

was consensual. Ifthe jury believed the victim, Charles committed second degree rape. 

17 

No. 31610-6-111 

State v. Carlson 

If the jury believed Charles, he committed no crime. There was no affirmative evidence 

that the intercourse was unforced but nonconsensual. 

State v. Wright, 152 Wn. App. 64, 214 P.3d 968 (2009), follows the holding in 

Charles. In Wright, the State, not the defendant, sought the inferior crime charge. This 

court reversed Harold Wright's and Richy Carter's conviction for third degree rape on the 

ground that insufficient evidence supported the convictions. Therefore, the trial court 

should not have granted a jury instruction on both second degree rape and third degree 

rape. The victim testified to being pulled into a darkened room, being shoved to a bed, 

and pressure placed on her shoulder to pin her to the bed. Both defendants claimed 

consensual sex. The court held that the trial court may not instruct on third degree rape 

as an inferior offense to second degree rape when the defendant contends the intercourse 

was consensual and the victim testifies that the intercourse was forced. State v. Ieremia, 

78 Wn. App. 746,899 P.2d 16 (1995) has the same outcome and analysis. 

The trial court correctly apprehended Washington case law when it refused to 

instruct the jury on third degree rape. 

Assignment ofError 3: Voluntary Intoxication 

We move to Christopher Carlson's second of three claimed instructional errors. 

Carlson sought a jury instruction on voluntary intoxication for the burglary charges. A 

criminal defendant has a right to have the jury instructed on a defense that is supported by 

substantial evidence. State v. Walters, 162 Wn. App. 74, 82,255 P.3d 835 (2011). 

18 

No. 31610-6-III 

State v. Carlson 

RCW 9A.16.090 reads: 

No act committed by a person while in a state of voluntary 

intoxication shall be deemed less criminal by reason of his or her condition, 

but whenever the actual existence of any particular mental state is a 

necessary element to constitute a particular species or degree of crime, the 

fact of his or her intoxication may be taken into consideration in 

determining such mental state. 

A voluntary intoxication instruction allows the jury to consider evidence of 

intoxication when deciding whether the State proved that the defendant acted with the 

crime's requisite intent. State v. Webb, 162 Wn. App. 195,208,252 P.3d 424 (2011). To 

warrant the instruction, a defendant must show: (1) the charged offense has a particular 

mental state, (2) there is substantial evidence the defendant was drinking, and (3) there is 

evidence the drinking affected the defendant's ability to acquire the required mental state. 

Webb, 162 Wn. App. at 209; State v. Priest, 100 Wn. App. 451, 454, 997 P.2d 452 

(2000); State v. Gabryschak, 83 Wn. App. 249, 252,921 P.2d 549 (1996). 

The first factor limits any voluntary intoxication jury instruction to Christopher 

Carlson's burglary charges, as second degree rape has no mental state requirement. 

RCW 9A.44.050. First degree burglary and residential burglary both require entering a 

home with the "intent to commit a crime against a person or property therein." RCW 

9A.52.020; RCW 9A.52.025. 

The State of Washington argues that Christopher Carlson was not entitled to a 

voluntary intoxication instruction for two reasons (1) he failed to present substantial 

19 

No. 31610-6-III 

State v. Carlson 

evidence that he drank alcohol, and (2) he presented no evidence that drinking affected 

his ability to acquire the mental state of entering a residence with the intent to commit a 

crime. We rest our decision only on the second ground. 

Intoxication is not an all-or-nothing proposition. State v. Gabryschak, 83 Wn. 

App. at 254. A person may be intoxicated and still be able to form the requisite mental 

state or can be so intoxicated as to be unconscious. State v. Gabryschak, 83 Wn. App. at 

254. Somewhere between these two extremes of intoxication is a point on the scale at 

which a rational trier of fact can conclude that the State has failed to meet its burden of 

proofwith respect to the required mental state. State v. Gabryschak, 83 Wn. App. at 254. 

Evidence of drinking alone is insufficient to warrant the voluntary intoxication 

instruction. State v. Priest, 100 Wn. App. at 455. Under RCW 9A.l6.090, it is not the 

fact of intoxication which is relevant, but the degree of intoxication and the effect it had 

on the defendant's ability to formulate the requisite mental state. State v. Coates, 107 

Wn.2d 882,891,735 P.2d 64 (1987). It is well settled that to secure an intoxication 

instruction in a criminal case there must be substantial evidence ofthe effects of the 

alcohol on the defendant's mind or body. State v. Gal/egos, 65 Wn. App. 230, 237-38, 

828 P.2d 37 (1992). Stated differently, the evidence must reasonably and logically 

connect the defendant's intoxication with the asserted inability to form the required level 

of culpability. State v. Griffin, 100 Wn.2d 417,418-19, 670 P.2d 265 (1983). 

20 

No. 31610-6-111 

State v. Carlson 

A review of the facts in reported decisions where a defendant sought a voluntary 

intoxication instruction is helpful. In every case requiring an intoxication instruction, the 

jury heard substantial evidence of the effects of the defendant's drinking, not simply the 

amount of drinking. In State v. Rice, 102 Wn.2d 120, 683 P .2d 199 (1984), the high court 

ruled that two defendants on trial for murder were entitled to a voluntary intoxication 

instruction. The defendants drank beer all day, ingested between two and five Quaaludes, 

spilled beer, and could not hit ping pong balls. One defendant did not feel being struck 

by a car. Both defendants had slurred speech. 

InState v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (l982), a voluntary intoxication 

jury instruction was merited. Steven Brooks drank beer, whiskey, and rum for two days. 

He ate a spider and washed the arachnid down his throat with whiskey. He had glassy 

eyes and slurred speech. Brooks' face was blotchy and his eyes buggy red. He trembled, 

walked lopsided, staggered, and fell in water. 

In State v. Jones, 95 Wn.2d 616,628 P.2d 472 (l981), fifteen-year old Stephen 

Jones was accused of murder. He drank between nine and eleven beers before the 

incident. He suffered glassy eyes and slurred speech. Officers placed Jones in a drunk 

tank upon his arrest. The trial court gave a voluntary intoxication instruction and the 

Supreme Court agreed with the use of the instruction. 

In contrast, in State v. Priest, 100 Wn. App. 451 (2000), a state patrolman arrested 

David Priest for driving while intoxicated. Priest's blood a1cohollevel was .169. The 

21 

No. 3161O·6-III 

State v. Carlson 

patrolman also discovered that the car driven by Priest was stolen, and the State charged 

Priest with taking a motor vehicle without the owner's permission. Although Priest had 

imbibed beer, he communicated with the patrolman and even offered to be an informant. 

He purposely provided the officer a false name. He drove a vehicle. We affirmed the 

trial court's refusal to deliver a voluntary intoxication instruction. 

In State v. Gallegos, 65 Wn. App. 230, 828 P.2d 37 (1992), the State charged 

Francis Gallegos with attempted second degree assault, which required proof of an intent 

to engage in sexual intercourse by forcible compulsion. Witnesses testified that Gallegos 

drank alcohol before the assault. The witnesses added that Gallegos lost his balance and 

knocked items over. Nonetheless, neither witnesses nor Gallegos testified that he did not 

acquire the requisite intent or that he lacked awareness of his actions. The trial court 

denied a voluntary intoxication instruction, and this court affirmed. 

In State v. Gabryschak, 83 Wn. App. 249,921 P.2d 549 (1996), Scott Gabryschak 

entered his mother's home by breaking the door. He destroyed furniture inside the home. 

Police observed him to be intoxicated, but Gabryschak presented no evidence ofthe 

amount he imbibed. When police arrived, he threatened to physically harm them. He 

repeatedly told the officer who drove him to the station that he would kill her. This court 

affirmed the trial court's refusal to give an instruction. We noted that he spoke 

coherently to police and he knew he was under arrest. The evidence did not show 

Gabryschak to slur his speech, to stumble or appear confused, or to be disoriented as to 

r 

22 

No. 31610-6-111 

State v. Carlson 

time or place. 

This court reviews a trial court's refusal to instruct the jury on voluntary 

intoxication for an abuse of discretion. State v. Gallegos, 65 Wn. App. at 237; State v. 

Priest, 100 Wn. App. at 454. We hold that the trial court did not abuse its discretion. 

Christopher Carlson's neighbors testified that his singing sounded drunken and 

slurred. Nevertheless, the neighbors did not see whether Carlson stumbled or lacked 

coordination. Carlson did not testify at trial but told officers that he drank a fifth of 

vodka and eventually passed out. At the same time he claimed not to have entered MJ.'s 

home and never testified as to when he allegedly blacked out. Carlson told detectives 

that he passed out because he was tired, not from drinking. 

More importantly, no witness testified to the impact of the alcohol on Christopher 

Carlson's ability to form the intent to enter MJ.'s home to sexually assault her. The 

overwhelming evidence about his conduct destroys Carlson's claim that he drank a fifth 

of vodka. Carlson agreed he took a shower and cooked, two activities that require ability 

to think and control one's actions. He had no difficulty grabbing and pinning MJ. He 

had no difficulty performing a sexual act. He spoke coherently to MJ. during the crime. 

He recalled that he might have earlier prevented another neighbor from assaulting MJ., 

and he told her that she owed him. 

The trial court did not err. 

23 

No. 31610-6-III 

State v. Carlson 

Assignment ofError 4: "Or Lack ofEvidence" Instruction 

Christopher Carlson contends the trial court erred when it omitted from the court's 

jury instruction 3 the phrase "or lack of evidence," as found in one ofthe sentences of 

WPIC § 4.01. As noted above, the phrase "or lack of evidence" was missing from the 

second sentence ofthe reasonable doubt instruction. Compare CP at 244 with WPIC § 

4.01, at 85. 

The failure of the court to state clearly to the jury the definition ofreasonable 

doubt and the concomitant necessity for the state to prove each element ofthe crime by 

that standard is far more than a simple procedural error. It is a grievous constitutional 

failure. State v. McHenry, 88 Wn.2d 211, 214,558 P.2d 188 (1977). In State v. Bennett, 

our Supreme Court exercised its inh~rent supervisory power to instruct Washington trial 

courts to use only the approved pattern instruction WPIC 4.01 to instruct juries that the 

government has the burden ofproving every element ofthe crime beyond a reasonable 

doubt. 161 Wn.2d 303,318, 165 P.3d 1241 (2007). The Bennett Court reasoned: 

Even if many variations ofthe definition ofreasonable doubt meet 

minimal due process requirements, the presumption of innocence is simply 

too fundamental, too central to the core ofthe foundation of our justice 

system not to require adherence to a clear, simple, accepted, and uniform 

instruction. 

161 Wn.2d at 317-18. 

In full, WPIC § 4.01 provides: 

24 

No. 31610-6-III 

State v. Carlson 

The defendant has entered a plea of not guilty. That plea puts in 

issue every element of the crime charged. The State is the plaintiff and has 

the burden ofproving each element of the crime beyond a reasonable doubt. 

The defendant has no burden of proving that a reasonable doubt exists. 

A defendant is presumed innocent. This presumption continues 

throughout the entire trial unless during your deliberations you find it has 

been overcome by the evidence beyond a reasonable doubt. 

A reasonable doubt is one for which a reason exists and may arise 

from the evidence or lack ofevidence. It is such a doubt as would exist in 

the mind of a reasonable person after fully, fairly, and carefully considering 

all of the evidence or lack ofevidence. [If, from such consideration, you 

have an abiding belief in the truth of the charge, you are satisfied beyond a 

reasonable doubt.] 

(Emphasis added.) Our trial court employed the first iteration of the highlighted phrase 

but omitted the second iteration. 

State v. Lundy, 162 Wn. App. 865,256 P.3d 466 (2011), is dispositive. In Lundy, 

the trial court modified the WPIC by reversing the order of the first two paragraphs and 

modifying the first three sentences of the paragraph on the State's burden of proof. 162 

Wn. App. at 871. Instead ofWPIC § 4.01 paragraph one, the trial court in Lundy 

instructed the jury: 

Each crime charged by the State includes one or more elements 

which are explained in a subsequent instruction. The State has the burden 

ofproving each element of a charged crime beyond a reasonable doubt. 

The defendant has no burden ofproving that a reasonable doubt exists. 

162 Wn. App. at 871. The Lundy court wrote: "Because our Supreme Court has 

unambiguously directed trial courts to use only WPIC 4.01, the trial court erred by 

modifying the instruction." 162 Wn. App. at 871. 

25 

No. 31610-6-111 

State v. Carlson 

The Lundy court found the error harmless. 

An erroneous jury instruction, however, is generally subject to a 

constitutional harmless error analysis. We may hold the error harmless if 

we are satisfied "beyond a reasonable doubt that the jury verdict would 

have been the same absent the error." Even misleading instructions do not 

require reversal unless the complaining party can show prejudice. 

Lundy, 162 Wn. App. at 871-72 (citations omitted). Because Lundy could not show that 

he was prejudiced by the instruction or that it relieved the State of its burden of proof, 

this court was satisfied beyond a reasonable doubt that the jury verdict would have been 

the same absent the error. Lundy, 162 Wn. App. at 873. 

Christopher Carlson, the State, and the Lundy court point out that "Division One 

ofthis court declined to apply a harmless error analysis to a trial court's failure to use the 

WPIC" in State v. Castillo, 150 Wn. App. 466,208 P.3d 1201 (2009). Lundy, 162 Wn. 

App. at 872. Castillo is readily distinguishable from Lundy and the instant case. In 

Castillo, the trial court expressly refused to follow Bennett, referring to WPIC § 4.01 as 

"gobbley-gook." Castillo, 150 Wn. App. at 470. The instruction in Castillo included: "A 

'reasonable doubt' is not a fanciful or ingenious doubt or conjecture, but an honest, 

conscientious doubt suggested by the material evidence or lack of it in the case. It is an 

honest misgiving caused by insufficiency of proof of guilt." 150 Wn. App. at 470. 

Comparatively to the jury instruction in Castillo, the instruction in Lundy and 

especially the instruction in this case substantially conformed to WPIC § 4.01. Our trial 

court left the same language of "or lack of evidence" in the first sentence ofthe burden of 

26 

No. 31610-6-III 

State v. Carlson 

proof paragraph. 

Christopher Carlson cannot show prejudice from the slight deviation from WPIC § 

4.01. The missing phrase "or lack of evidence" did not relieve the State of its burden, 

given the trial court provided WPIC § 4.01 's first and second paragraphs verbatim. This 

court assesses jury instructions "as a whole." Bennett, 161 Wn.2d at 307. Furthermore, 

the critical issue at trial was not the lack of evidence, but whether the jury found MJ. 

credible. It did. 

Statement ofAdditional Grounds (SAG) 

In his pro se brief, Christopher Carlson raises eighteen additional claimed errors. 

Carlson alleges foul play against him, which included the theft of his truck and hacking 

of his bank account. Carlson further faults his defense counsel for refusing to investigate 

this foul play. The current record is insufficient to allow review of these issues. State v. 

McFarland, 127 Wn.2d 322, 335,899 P.2d 1251 (1995). 

Christopher Carlson contends he was unfit to stand trial due to malnutrition. 

Again, the current record is insufficient. Carlson repeatedly claims that there was a 

"failure to instruct jury" on the correct interpretation, meaning, or weight of different 

evidence. Neither the trial court nor defense counsel could instruct the jury to construe 

evidence in a manner favorable to Carlson. "Judges shall not charge juries with respect 

to matters of fact, nor comment thereon, but shall declare the law." CONST. art. IV, § 16. 

Last, Christopher Carlson contends the trial court erred when it excluded evidence 

27 

No. 3161 0-6-II1 

State v. Carlson 

ofprevious, neighborly interactions between Carlson and M.J. under Washington's rape 

shield statute. SAG at 4-5; lRP 19-20,22. 

[E]vidence ofthe victim's past sexual behavior including but not 

limited to the victim's marital behavior, divorce history, or general 

reputation for promiscuity, nonchastity, or sexual mores contrary to 

community standards is not admissible if offered to attack the credibility of 

the victim and is admissible on the issue of consent, except where 

prohibited in the underlying criminal offense, only pursuant to the 

following procedure. 

RCW 9A.44.020(3) (emphasis added). That procedure requires "[a] written pretrial 

motion," "accompanied by an affidavit or affidavits in which the offer ofproof shall be 

stated." RCW 9A.44.020(3)(a), (b). Carlson did not forward such a motion. Thus, the 

trial court did not err when, on the first day of trial, it ruled the evidence was "covered by 

the rape shield statute and should not be admitted unless that statute is complied with, 

which it has not been." RP (Feb. 27, 2013) at 22. 

CONCLUSION 

We affirm Christopher Carlson's convictions. 

A majority ofthe panel has determined this opinion will not be printed in the 

28 

No. 31610-6-II1 

State v. Carlson 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

~fcg Lawrence-Berrey, 

29